Scrambling to Cover Up a Possible Lie to the Supreme Court in Nken v. Holder, ICE Issues a New Memo Describing Policy that It Claimed Existed Years Ago

In the face of conflicting evidence, the government backs down in opposition to stay of removal in the Seventh Circuit

Just last month a federal judge made headlines by suggesting that the Office of the Solicitor General may have been “engaged in a bit of a shuffle” when it told the Supreme Court in 2009 that there was a government policy for returning individuals who had been wrongfully deported. Now, a new Immigration and Customs Enforcement (ICE) memo, issued on February 24, provides further evidence that there was no policy in place to return wrongfully deported individuals at the time that statement was made to the nation’s highest court.

The memo falls far short of what an actual policy should include. Instead the memo is replete with loopholes, failing to mention what sta ndards ICE uses or what office adjudicates requests for return. It also fails to cover individuals who need to return after a court reopens their case.

This is the first known document issued by ICE purporting to describe a “policy” in the three years since the Office of the Solicitor General asserted to the Supreme Court that the government maintains a policy and practice of returning people who win their immigration cases back to the United States and restoring their immigration status. Although the memo claims to “describe[] existing ICE policy,” it does not supersede any other policy document or directive. No other evidence produced in response to a FOIA request shows that such a policy or practice actually exists.

The memo first surfaced when it was filed by the government in opposition to an emergency motion for stay of removal on March 1 in Lam v. Holder, a case in the Seventh Circuit. The Petitioner filed a response on March 6, attaching a declaration from Jessica Chicco of the Post-Deportation Human Rights Project at Boston College, detailing evidence that no policy or practice exists for providing effective relief to individuals who prevail in their immigration cases from abroad. The documents produced thus far in response to a FOIA request by the National Immigration Project et al. “reflect confusion within the agency not just about how to facilitate individuals’ return, but about whether to do so at all.” The government subsequently withdrew its opposition to the stay.

“Unfortunately, this memo raises more questions than it answers, and does little to provide real relief to those who win their cases from abroad,” said Ms. Chicco, “It includes no concrete information on how people wrongfully deported are to be returned to the United States. Instead, this memo seems designed to help the government convince courts that it has a policy in place, when all other evidence points to the contrary.”

The February 24, 2012 memo was issued in the wake of a federal District Court Order that instructed the U.S. government to release portions of emails between the Department of Justice (DOJ) and ICE that served as the alleged factual basis for the Solicitor General’s inaccurate assertion to the Supreme Court in Nken v. Holder in 2009. The District Court has granted the government’s request to stay the order for 60 days. Rather than release the emails, however, ICE simply has issued a new memo claiming that such a policy always has existed, once again failing to provide any actual procedures to make such a policy a reality.

The “policy” document by no means provides effective relief to individuals seeking return. For example, there is no mention of which agency office bears responsibility for helping individuals who seek to return or how ICE is to return those individuals. Unlike other memos of this type, this directive includes no procedures at all. Under the heading “Procedures/Requirements” it states: “None.” In addition to the lack of any concrete steps a person can take to return to the country, the memo fa ils to provide any information about how the government intends to communicate this new return process to prevailing litigants outside the United States, especially persons without counsel.

Moreover, the “policy” leaves large gaps in its coverage. Significantly, it fails to cover individuals who win Motions to Reopen or those who were removed erroneously in violation of a court-ordered stay. It only applies to people who had Petitions for Review pending when ICE removed them, and, within this subgroup of people, only to individuals whose lawful permanent resident (LPR) status is restored by the Court, or whose presence is “necessary for continued administrative removal proceedings.” The memo lacks any explanation of when ICE will deem presence “necessary”—a limitation which was n owhere to be found in the government’s representation to the Supreme Court. Thus, the memo ultimately renders return dependent on a favorable ICE determination that presence is necessary, not on a favorable court outcome. As such, this memo would leave scores of individuals without access to return, including those who have their asylum or other status restored. Last but not least the memo provides no information on what would constitute the “extraordinary circumstances” in which ICE would not have to facilitate return, an exception that could swallow the rule.

Despite evidence submitted in court showing that immigrants face extreme difficulties in returning after winning their cases from abroad, the government has continued to deport individuals while they seek appeals and to rely on statements made in Nken v. H older to argue that deported individuals who later prevail in their cases will not face irreparable harm.

Court Says Landlords Under No Legal Obligation to Inquire about Immigration Status

According to a federal appeals court, and contrary to claims by one of the nation’s leading anti-immigrant groups, landlords do not violate federal immigration law if they rent to a tenant they know lacks lawful immigration status.

The February 24 decision by the Third Circuit Court of Appeals in Philadelphia also states that a landlord is under no obligation to inquire about a prospective tenant’s immigration status. These two claims formed the core of a case, Delrio-Mocci v. Connelly Properties*, brought in 2008 by the Immigration Reform Law Institute in Washington, D.C., against a New Jersey landlord. The suit was an attempt to force landlords to cease renting to families who may be undocumented immigrants.

The decision was grounded on the Court’s finding that federal immigration law does not intend to deprive undocumented immigrants of housing as a means to force them to leave the country. The Court further reasoned that landlords could not possibly be viewed as having the wherewithal to verify someone’s immigration status, a complex task that can take years for lawyers and the courts to untangle. In fact, the Court noted that several federal programs explicitly permit undocumented immigrants to live in households that receive federal assistance.

LatinoJustice PRLDEF and its co-counsel the law firm of Duane Morris filed an amicus brief and argued before the appellate court on behalf of a local New Jersey community group The Latin American Coalition of Plainfield, which counted several members among the residents in the subject properties.

“With the poisonous politicizing and demonizing of immigrants, this decision is a potent reminder that our nation is based on the rule of law and on compassion for our neighbor,” explained Juan Cartagena, President and General Counsel of LatinoJustice PRLDEF. “The belief that a landlord should take on the role of a federal immigration enforcement agent would create an explosion of witch hunts in which thousands of Latinos would be denied housing as they would be presumed guilty until proven innocent with respect to their immigration status. We cannot permit that to happen.”

“We are very pleased with the court’s decision, and proud to have played a part in such an important case for the immigrant community and for landlords,” said Duane Morris partner Marco A. Gonzalez, Jr.. “My colleague and co-counsel Rob Palumbos and I share Duane Morris’ commitment to pro bono service. We look forward to working with LatinoJustice PRLDEF to address pressing issues for Latinos in the future.”

Watch this video about Cal basketball player Bak Bak's long journey from the Sudan to Berkeley, California. His travails with the U.S. Embassy in Kenya made some, including Cal coach Mike Montgomery, doubt that he would be able to return to the U.S. after a trip to Africa to unsuccesssfully try and renew his passport in the Sudan.

News from Alabama! The U.S.Court of Appeals for the Eleventh Circuit, which heard oral arguments last week in the cases challenging the constitutionality of the Alabama and Georgia immigration enforcement laws, issued an order yesterday blocking two more sections of Alabama's immigration law pending the court's final ruling. The court blocked provisions that bar residents from knowingly entering into contracts with undocumented immigrants and ban undocumented immigrants from entering business transactions with state and local governments.

New America Media reports that a group of pro-immigrant rights activists in Arizona aim to develop a smartphone application that would help immigrants notify friends, family and their attorney if they are detained and arrested during a traffic stop. Arizona is the home of the immigration enforcement measure known as SB 1070, which is now before the Supreme Court. A recent Department of Justice investigation on racial profiling of Latinos by the Maricopa County Sheriff’s Office found that Latinos were four to nine times more likely to be pulled over in a traffic stop than non-Latinos.

A contingent of 1,000 marchers today called on lawmakers to repeal Alabama’s vehemently anti-immigrant law during the reenactment of the Selma-to-Montgomery march.

Latinos, Blacks, civil rights, labor and immigrant rights groups all came together in a show of solidarity that racially discriminatory laws will not be tolerated in Alabama or any other state.

Among the marchers were 400 members of the Fair Immigration Reform Movement (FIRM) and 200 members of the Alabama Coalition for Immigrant Justice (ACIJ).

“I am among the many sending a very strong message to Alabama lawmakers that the state’s anti-immigration law, HB56, must be repealed,” said Deepak Bhargava, executive director of the Center for Community Change, a member of FIRM. “This law has given police carte blanche to racially profile people. It has kept children from school and, forced hardworking families to leave Alabama costing the state $10.8 billion annually.”

“There has been one positive aspect of this law: it has brought together black, brown and white people, labor, clergy, civil rights, immigrant rights and human rights groups,” Bhargava said. “We will hold the state Legislature accountable for dragging Alabama back into its darkest days of discrimination. We will hold businesses accountable if they don’t speak up against this law. We will take this fight to other states thinking about enacting similar laws.”

Tuesday's primary involved 10 states and 437 delegates at stake for the Republican Party’s presidential prospects. There are two states among that crop that are worth taking a look at: Georgia and Tennessee. Both are emblems for a growing, and troubling, legislative trend in which new election laws mandate citizens to produce photo identification to vote, ask people to prove their citizenship to vote, or outright curtail voter registration efforts.

According to the Brennan Center for Justice, as many as five million eligible voters could meet difficulties this Election Day due to these new, imposing voter laws.

There are currently eight states with photo voter ID laws containing specific criteria for what qualifies as “identification” for voting purposes. Some states require that identification be state-issued and only for the state a person is voting in; some prohibit college IDs; some demand that the full name and address on the card be current; while some require that an ID card has an expiration date.

Looking at those stipulations, it’s not hard to imagine how low-income citizens, African Americans, Latino Americans, college students, and elderly voters—groups the Brennan Center has identified as the most burdened by new voter laws—might get tangled up on voter day. The Center estimates that as many as 11 percent of eligible voters lack proper identification right now. For African Americans, it’s 25 percent—that’s 5.5 million voting-age black Americans who could get turned away at the polls for being undocumented and unphotographed. Read more...

Angela Maria Kelley and Philip E. Wolgin for the Center for American Progress ttoday, on International Women’s Day, released “10 Facts You Need to Know About Immigrant Women,” showing that immigrant women in the United States (documented and undocumented combined) comprise more than half of all immigrants and play a significant economic and integrative role in our society and economy. The list of the top 10 facts about immigrant women includes:

• The face of today’s immigration is more female than male. In 2010, 55 percent of all people obtaining a green card were women. Women comprised 47 percent of all refugee arrivals and 53 percent of all people who naturalized to become a citizen.

• Immigrant women embrace citizenship and encourage integration. According to 2009 public opinion research by New America Media, immigrant women from a broad range of countries are overwhelmingly the drivers of naturalization in their families, with 58 percent of respondents stating that they felt the strongest in their family about becoming an American citizen. Overall, 84 percent of the women surveyed want to become citizens, with a whopping 90 percent of female immigrants from Latin American and Arab nations indicating their desire to naturalize.

• Immigrant female business owners outpace their American-born counterparts. In 2010 immigrant women comprised 40 percent of all immigrant business owners and 20 percent of women business owners in general. These women are now more likely to own their own business than American-born women (9 percent to 6.5 percent, respectively).

• Immigration enforcement is taking its toll on immigrant families. Rising deportations of undocumented immigrants are separating children from their parents. A 2011 report from the Applied Research Center found that more than 5,000 children living in foster care had parents who had been detained or deported from the United States. They estimate that another 15,000 children will end up in foster care in the next five years because of immigration enforcement.

• Immigrant women workers are vulnerable to abuse at work. Immigrant women make up close to the entire population of domestic workers in major cities such as New York, with one study by Domestic Workers United finding that 33 percent of domestic workers in New York City experienced some form of physical or verbal abuse, often because of their race or immigration status.

• They are also vulnerable to abuse at home. Domestic abuse affects immigrant and American-born women alike, but immigrant women suffer from particular vulnerabilities, particularly from abusive partners who use the woman’s immigration status to keep them from leaving an abusive marriage or relationship.

• Human trafficking is another form of abuse endured by immigrant women and children. The U.S. Department of Justice estimates that each year 50,000 people are trafficked into our nation. U.S. officials can grant up to 5,000 so-called “T” Visas to help free immigrant women forced into, among other things, the sex trade, but studies find that barely any are being granted. In 2010, for example, only 447 T Visas were approved.

On Friday, March 2, 2012, a jury in New York City Civil Court awarded our client, Jose Borges, $1.19 million in damages against his former immigration attorney, Alfred Placeres. The name of the case in Borges v. Placeres, Civil Court Index Number TS-530-04. The Law Office of Paul O’Dwyer represented Mr. Borges.

The case arose from claims that Mr. Placeres had allowed a “notario” or non-attorney to falsely claim that she was Placeres’ paralegal, and to do all of the work on Mr. Borges’ case, including preparing all of his immigration forms and immigration court papers, forging Placeres’ signature on those forms, and repeatedly advising Mr. Borges that he did not need to attend his immigration court hearing. As a result, Mr. Borges was ordered deported in his absence, lost his job as an engineer, was detained in immigration custody for over 400 days, and had a nervous breakdown. When Mr. Borges tried to complain about him, Placeres altered some of the immigration documents that had been filed, to make it seem as if he, and not the notario, was the one who had done all of the work on the case. This, of course, made it far more difficult for Mr. Borges to reopen his deportation order, although we were eventually successful at the Third Circuit Court of Appeals, in Borges v. Gonzales, 402 F.3d 398 (3rd Cir 2005). In 2006, Mr. Borges finally obtained permanent residence, many years late.

We then sued the notario and Mr. Placeres; the case against the notario was earlier dismissed (based on the statute of limitations and corporate immunity), and the case against Placeres went to trial in late February. After a five day trial, during which Placeres did not deny any of the allegations, the jury found that he had committed legal malpractice, and awarded Mr. Borges $1.19 million in damages for his lost income, additional legal fees, and pain and suffering because of his incarceration.

JURIST reports that the U.S. Court of Appeals for the Eleventh Circuit last Thursday heard arguments in a challenge to illegal immigration legislation recently passed in Alabama and Georgia. The three-judge panel chose to defer its ruling until after the U.S. Supreme Court rules on a pending challenge to the controversial Arizona immigration law. The American Civil Liberties Union and a coalition of other civil and immigrant rights organizations claim that the Alabama and Georgia laws "endanger public safety and invite racial profiling" and "interfere with federal law that controls immigration law enforcement."

After nearly five hours of oral arguments the court opted to wait until the Supreme Court provides direction when it rules on the Arizona immigration legislation. Until the court issues a decision, the lower court rulings in the Alabama and Georgia cases will remain in effect. Oral argument before the Supreme Court for Arizona v. United States is scheduled for April 25.

Alejandro Mayorkas, Director of U.S. Citizenship and Immigration Services (USCIS), cordially invites you to attend a national stakeholder engagement to discuss the agency’s 2012 priorities on Thursday, March 15, 2012 at 3:30 p.m. (EST).

To Participate in the Session

Any interested parties may participate in this event in person or by telephone. To respond to this invitation, please contact the Office of Public Engagement at Public.Engagement@uscis.dhs.gov by March 14, 2012, and reference the following in the subject line of your email:

If you plan to attend in person, please reference “Priorities – In Person”

If you plan to attend by phone, please reference “Priorities – Phone”

Please also include your full name and the organization you represent, if any, in the body of the email. If you are attending in person, please be sure to bring photo identification and plan to arrive at least 15 minutes early to allow extra time to complete the security process.

To Join the Call

On the day of the engagement please use the information below to join the session by phone. We recommend calling in 10 minutes prior to the start of the teleconference.

On the morning of March 6, 2007, 361 workers at the Bianco Factory in New Bedford, Massachussetts were arrested in an immigration raid. The Bianco factory produces vests and backpacks for the U.S. military, and many of its employees were undocumented. "Detained" tells the story of these workers and their families as they are caught up in the raid and the chaotic days that follow.

Campaign for an American DREAM begins its 3,000-mile trek across the nation on Saturday, March 10th at the Golden Gate Bridge. The mission is to walk across the nation from San Francisco to D.C. creating dialogue around the passage of the DREAM Act and immigration reform with the values of equality, unity, and diversity.

The community will come together March 10, 2012 to join in a walk across the nation from the Golden Gate Bridge to Washington D.C. with the aspirations of creating productive dialogue around the plight of undocumented youth in small towns and big cities along the route. Educating communities and opening spaces where all people can come together and discuss the opportunities of seeing all youth properly included into our American society via the passage of the DREAM Act and immigration reform.

The Department of Homeland Security (DHS) has approved family-based visa petitions for 112,000 Haitians who are on a wait list in Haiti of about 3 to 11 years. It should promptly reunite these families beginning with the most vulnerable, like the 15,000 minor children and spouses of permanent residents whose wait time is nearly three years.

Massachusetts State Rep. Linda Dorcena Forry has created a letter/petition to the President to expedite Haitian family reunification on which she is seeking 5,000 co-signers. We urge you to sign and broadly disseminate the petition!

The U. S. has paroled hundreds of thousands of Cuban, Indochinese, and Kosovar refugees, and DHS has a Cuban Family Reunification Parole Program under which 30,000 approved beneficiaries have been paroled into the U.S. since 2009. A similar Haitian program makes sense.

The Center for Global Development, in "Migration as a Tool for Disaster Recovery: A Case Study on U.S. Policy Options for Post-Earthquake Haiti," June 2011, urges DHS to create a Haitian FRPP, cites the Cuban program as precedent and notes:

Rather than waiting 3 to 11 years for a visa in Haiti, beneficiaries could be paroled into theUnited States where they can be reunited with family and have employment authorization.

The proposal has merit not only for the humanitarian purpose it would serve but also to enable Haitians to send more remittances home and foster economic development with greater speed.

Instituting a family reunification parole program for Haitians is simpler than it may appear, since it requires no congressional action.

The Cuban program’s rationale of saving lives at sea and providing for orderly migration applies with equal force to Haiti.

No one would get a "green card" any sooner -- like the Cubans, they'd just be able to wait for them here w/their families rather than in Haiti.

ABSTRACT: This primer on deportation law, cases, and legislation, provides a brief overview of deportation law since the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. It reviews how IIRIRA reconfigured immigration law, altering the basic framework under which persons were excluded and deported to focus on inspection and admission rather than entry. It also examines the expansion of the grounds of deportability for persons with criminal convictions. It then summarizes some of the most important deportation cases of the 21st century, including INS v. St. Cyr, Zadvydas v. Davis, and Padilla v. Kentucky. It examines recent developments regarding the Supreme Court's consideration of persons charged as deportable for having committed "aggravated felonies." It concludes with a discussion of comprehensive immigration reform, concluding that there has not been the political will to bring about comprehensive reform, and that lukewarm and last-minute efforts at such reform underscore a recurring paradox in American politics: the Democratic leadership's recognition of the importance of the Latino/a vote coupled with a reluctance to prioritize issues of importance to Latino/as in a timely and meaningful fashion.

Miriam Jordan on the Wall Street Journal On-Line reports that a group of Silicon Valley technology leaders is funding efforts to help undocumented youths attend college, find jobs and stay in the country. The group includes Jeff Hawkins, inventor of the Palm Pilot; and the family foundations of Andrew Grove, co-founder of Intel Corp.; and Mark Leslie, founder of the former Veritas Software Corp. Laurene Powell Jobs, widow of Apple Inc. co-founder Steve Jobs, has for years supported undocumented students through her organizations that help low-income high-school students.